Speech by Morten Kjaerum at the Conference "Migration in Europe: Challenges and Opportunities"

Ladies and gentlemen,
I would like to express my sincere thanks for being invited to this conference
on Migration in Europe: Challenges and Opportunities. Looking at the agenda I
can see that you cover all aspects of migration and the range of challenges to
fundamental rights posed across the table, which will make for a very
interesting, all-encompassing event.
Trees have roots. Human beings use boots. We have always moved around. For
family reasons, for economic reasons, or to escape persecution, war or natural
disasters.
Around two weeks ago, a boat left Libya, carrying around 300 migrants and
asylum seekers from Somalia, Nigeria, Bangladesh, Cote d’Ivoire, Chad, and
Sudan. Two days later, in the early hours of the morning the boat capsized 40
miles off the Italian island of Lampedusa. Only 50 people survived.
According to some estimates, one in four migrants who travel to Europe by sea
die on this journey. And the land journey also claims its victims.
The Fundamental Rights Agency recently visited the land border between
Greece and Turkey, which as been experiencing very high levels of irregular
border crossings. The living conditions among irregular migrants in the
detention centres constitute a fundamental rights crisis. There were 45 recorded
deaths at the border in 2010. Our own experts counted almost 50 unmarked
graves at a makeshift cemetery near the border.
This is the cold, hard, desperate reality that people who try to get into Europe
are faced with at the borders. But the challenges do not stop there – they
continue once people have entered the EU.
Migration policies and practices need to be structured around the core values of
respect for fundamental rights and the right to asylum. But it is clear from the
situation on the ground as reported by the Agency and other organisations that
there are difficulties in putting this into practice.
Today I would like to outline four areas where challenges exist, before moving
on to the opportunities on how they can be addressed.
• Firstly, how can it be ensured that fundamental rights are guaranteed,
and in particular the right to seek asylum, while there is at the same time
the need to control immigration at the EU’s external borders?
• Secondly, how can it be guaranteed that reception conditions for
irregular migrants comply with fundamental rights standards in practice?
• Thirdly, how are victims of trafficking treated, and in particular
children?
• Fourthly, how can it be ensured that irregular migrants who are already
living on EU territory have access to their basic rights?

1) Firstly, turning to the EU’s external borders. It is well established under
international law that it is each State’s right to determine who enters and who
remains on its territory. This is subject, of course, to the prohibition on nonrefoulement
and the obligation to respect fundamental rights.
There is a particularly challenging fundamental rights situation with regard to
those who are intercepted by coast guards on the high seas. Because they are
intercepted outside the territory of the EU, some States argue that the rule of
non-refoulement does not apply. Based on cooperation agreements between
some Member States and third countries, individuals intercepted at sea risk
being automatically returned to their country of departure – which in my view
raises several concerns with regard to respect for the principle of nonrefoulment.
So the first problem is that such a policy of intercepting and returning irregular
migrants before they even reach the territory of the EU, prevents those who are
genuinely in need of asylum, from actually lodging applications. Given the
conditions of some of their vessels, that are often overcrowded, insufficiently
supplied, and unseaworthy, such returns also expose their passengers to
additional risks to their safety.

2) The second area where challenges exist relates to reception conditions
for irregular migrants after they managed to reach the territory of a Member
State.
During the second half of 2010, Greece registered 38,000 arrivals at the land
border with Turkey. During 2010 the Greek external borders accounted for
90% of all detections of irregular land and sea border crossings into the EU.
These are massive and sudden inflows taking place over a short space of time,
which usually means that national and local authorities do not have the
logistical capacity to cope.
At the Greek land border, those irregular migrants who have been detected by
authorities have been systematically detained, even including babies. And this
has led to overcrowding and insanitary conditions. The experts from the
Fundamental Rights Agency recently visited 3 detention centres at the Greek-
Turkish land border.
To give one concrete example, in the centre in Soufli, 144 persons held in one
room measuring 110m2. Persons were lying on the beds as well as on the floor
tightly packed one next to each other. FRA staff had to climb over the bodies to
get in and move around. One person slept in a non-functioning shower. Three
other people slept in a dark hole above the toilet. They stay there for months.
The Agency also found difficulties in the screening of migrants, meaning that
those in need of international protection were often not given the opportunity to
apply for asylum. So again, it is not just those intercepted at sea, but also those
that may have reached the territory of a Member State, that have serious
difficulty in exercising their right to seek asylum.
The Agency found that the underlying reasons behind these difficulties in
Greece are that responsibilities for migration management are fragmented
among four different ministries. The division of responsibilities at local level is
unclear, and there is a lack of a local operational coordination mechanism,
combined with an absence of NGOs that could support delivery of services.
The situation in Greece is exceptional. But I do not think that we can treat it as
an exception.
Lampedusa has received 25,000 arrivals since the beginning of the year. It is a
small Island with only around 5,000 inhabitants.
And history tells us that governments need to be prepared. We may recall that
during the conflict in Kosovo in 1999 Italy received as many as 50,000
Kosovars. You may also remember that in 2006 the Canary Islands received
almost 32,000 arrivals.
So the second challenge I would highlight is that the EU’s border States need to
be sufficiently supported in dealing with sudden inflows of migrants in a
humanitarian manner, at the same time as ensuring that those in need of
international protection are able to apply for asylum.

3) The third area I would like to cover relates the protection of victims of
trafficking, particularly children.
According to latest figures it is thought that there are between 120,000 and
175,000 people in the EU who have been trafficked. They are mainly women
and children, and it is estimated that 75-80 % of them work in the sex industry
or as domestic workers.
I will focus on the situation of children. Here I would like to recount a story
reported in the BBC in 2009. Dayo, 15 years old, was brought from Nigeria to
the UK. She looked after 3 children, did all the domestic tasks and was beaten
daily. When she finally contacted a help group, the trafficker tried to return her
to Nigeria. She refused to get on to the plane and was therefore taken to the
immigration services.
The immigration officers did not believe anything she said. They let the
trafficker go, and kept Dayo in a centre. After 5 days they took her to the
airport for deportation, but Dayo managed to contact an Asylum Aid group that
prevented her deportation, claiming that she was an unaccompanied minor who
was seeking asylum in the UK.
Ladies and Gentlemen, this is one of the rare cases that have been made public.
But sadly, every year thousands of children and young people experience
similar stories throughout the EU. With all these cases of child trafficking
remaining unknown, unreported, and unpunished.
Dayo’s story typifies the impossible choice facing trafficked children: to
remain living in slave-like conditions, or to try to seek help and risk
prosecution or deportation.
And this is another challenge in the context of migration. The Agency’s
research in this area shows that unfortunately there are Member States that
have not tended to take a fully victim centred approach to children who are
trafficked. That is, an approach that focuses on the best interest of the child by
providing protection and ensuring their material, educational, health and
emotional needs.

4) Finally, the fourth challenge relates to the situation of irregular
migrants on the territory of the EU. The exact number of irregular migrants
in the EU is unknown, but a recent EU-Commission-funded project
(CLANDESTINO) estimated that in 2008 the numbers lay between around 2
and 4 million people (1.8 and 3.8 m to be exact).
Irregular migrants are particularly vulnerable. Those who have arrived here
illegally or who have outstayed their visas find themselves open to exploitation,
particularly from unscrupulous employers. They force themselves to fly below
the radar because any contact with public authorities could lead to their
detention or deportation. They may also find that they have reduced access to
certain basic services like health care.
For example a report that the Agency will publish later this year shows that
irregular migrant children rarely enjoy equal access to health care. Only four
Member States (Greece, Portugal, Romania and Spain) guarantee access to
healthcare that is similar to children who are on the territory legally. Other
Member States restrict access to free health care or health insurance to specific
groups such as unaccompanied minors or children who have no right to remain
but cannot be removed.
Worse still, in some Member States, there is actually an active duty on health
service providers to report undocumented migrants to the police. Even if in
practice this duty is not systematically implemented, the fear of being reported
can have a significant deterrent effect on the health of irregular migrants.
And what of those migrants who manage to find work - irregularly? Their fear
of contact with the authorities makes them very vulnerable to exploitation from
employers who know that they are unlikely to complain of mistreatment.
In Spain in May 2009, an irregular Bolivian migrant who worked in a bakery in
Valencia lost an arm in a work-related accident. The owners of the bakery
allegedly abandoned the worker near a hospital and threw the arm in a rubbish
tip. It later transpired that this man had worked 12 hours a day, earned €700 per
month without holidays, and that the accident was caused by failure of the
company to comply with safety procedures. Spanish trade unions supported the
worker, and the case has gone to court.
In many Member States, legal remedies are difficult to access for irregular
migrants. Take for example where an individual wishes to sue an employer for
unpaid wages.
Our research for the report found that in at least 8 Member States an irregular
migrant is legally NOT entitled to make a claim for compensation of unpaid
wages. And even where claims are permitted, claims often fail because
contracts are mostly not put in writing, so the claimant cannot prove that a
contract existed in the first place. Similarly, irregular workers cannot rely on
their co-workers as witnesses, because they in turn fear losing their jobs –
which may also mean losing residence permits for those who do stay legally.
So the final challenge, in summary, is the lack of adequate protection from
exploitation, and the lack of access to employment-related rights and vital
services like health care or access to education, for irregular migrants and their
children.
Ladies and gentlemen, now I would like to turn to address possible solutions to
these problems, or rather, the opportunities to integrate respect for fundamental
rights in the regulation of migration. To an extent we can see that fundamental
rights are already becoming mainstreamed into migration policy.

1) Firstly, in relation to migrants intercepted at sea.
In April 2010, the EU-Council adopted a Decision on external borders that
contained a mixture of binding and non-binding rules on this issue. The
decision stipulates that operations at sea should be carried out in accordance
with fundamental rights, and that the principle of non-refoulement should be
observed. Consideration should also be given to the needs of vulnerable
persons like children, victims of trafficking and those in need of international
protection.
In addition, the proposed revised Regulation for Frontex, which is the EU
Agency responsible for coordinating these border operations, includes explicit
legal provisions for respect of fundamental rights. This will help to equip
personnel with the expertise they need to ensure that rights are respected on the
ground. Frontex has also started to train their staff and border guards on
fundamental rights, in a joint project with the Fundamental Rights Agency.
This is a step in the right direction, but questions remain. What does it mean to
give consideration to the needs of these vulnerable groups? How will units
assess whether they are observing the non-refoulement principle when they
disembark people in the country from which their vessel departed? Because this
is the priority set by the Decision.
During 2011, the Agency is conducting research that may allow us to get some
answers. The project focuses on the experiences of individuals, including third
country nationals themselves, in rescue or interception operations at Southern
maritime borders of the EU in Spain, Italy, Malta, Greece and Cyprus. The
report will be published in 2012.

2) Secondly, how can the reception conditions for migrants be improved,
especially in Member States that experience sudden inflows:
The Agency’s report on Greece highlighted three areas of action by the EU
based on solidarity.
• Firstly, measures of financial solidarity between Member States is
crucial since States at the external borders of the EU inevitably face a
greater burden than others. Additional funds are indeed being disbursed
through the External Border Fund and the European Refugee Funds.
However, the Agency’s report on Greece found that although EU funds
were available, administrative problems in Greece caused significant
delays, or money was not even claimed – and so often did not reach
organisations capable of providing support, like NGOs. In short:
Although money would have been available, it was not used and the
situation did not improve.
• Secondly, the provision of operational support. In this sense the EU has
deployed personnel from FRONTEX, the EU’s border agency, and will
in future provide personnel from the European Asylum Support Office
(EASO). These human resources can support the border and asylum
infrastructure by assisting with the screening of migrants to identify
those who wish to claim asylum, as well as physically patrolling the
border while ensuring respect for fundamental rights. For example, since
the presence of Frontex at the Greek-Turkish border, push-backs have
considerably decreased.
• A third way forward is the promotion of voluntary relocation
programmes within the EU. Under a pilot project for relocation of
refugees from Malta (EUREMA) a few Member States have agreed to
relocate recognised refugees on their territory. Expanding this pilot
project more generally would go some way towards alleviating the
burdens that prevent the EU’s border States from implementing
fundamental rights standards.

3) Let me turn to the third big challenge that I raised earlier - to the
victims of child trafficking. The solution lies in part in ensuring that victims
of trafficking receive protection. In March the Council adopted a new Directive
on human trafficking that introduces a number of protective measures for
vulnerable persons, including children. This is a welcome development, but
will need to be accompanied by policies to provide for the basic physical,
emotional and developmental needs of minors once they have been removed
from the control of traffickers. It is vitally important not to re-victimise the
victim.

4) And finally, how to address the exploitation of irregular migrants and
how to ensure access to basic services? Here the solution to the problem lies
in returning to the very core of human rights: that they are universal.
In practice this means that irregular migrants must have access to remedies
against for instance unscrupulous employers, and access to essential services
like healthcare and education without fear of deportation or other negative
consequences.
Ladies and gentlemen,
we can see from all this: there are difficult challenges, but the EU is
progressing some way towards addressing them.
Before I conclude I would like to address one broader issue. The present
migration situation in the South of Europe shakes the corner-stone of EU
migration policy.
The EU’s current asylum framework is regulated by the Dublin II Regulation.
As most of you will know, this creates a system allowing a Member State to
return an individual to the State where they initially entered the EU. The
Dublin co-operation has now been challenged on human rights grounds, with
regard to return to Greece.
In the case M.S.S. v Belgium and Greece the Grand Chamber of the European
Court of Human Rights decided that the return of an asylum seeker from
Belgium to Greece under the Dublin II Regulation constituted a violation of
Article 3 of the Convention. This is partly because of the conditions of
detention that I described earlier. National administrations and courts in several
EU Member States have meanwhile suspended all returns of asylum seekers to
Greece under the Dublin II Regulation.
This shows two things. Firstly, that States need to take their fundamental rights
obligations seriously when deciding whether to transfer asylum applicants
under the Dublin II Regulation. Secondly, it highlights that more solidarity may
be needed between EU Member States – since the burden of deciding asylum
claims and of physically coping with large migration flows is placed most
heavily on those States who lie at the EU’s external borders.
For example, Italy has called for more solidarity from the other Member States
in dealing with the inflows that I mentioned earlier. Italy recently took the
drastic step of introducing stay permits for more than 20,000 immigrants
allowing free movement within the Schengen area. In effect, this can relieve
the pressure of large numbers of irregular migrants in Italy. But it has prompted
other Member States to consider reintroducing border checks within the
Schengen area.

Ladies and gentlemen,
as you can see, there are many challenges posed to the protection of
fundamental rights in the context of migration. But there are also some positive
policy developments to meet the challenges, and there is clearly some more
thinking to be done in the near future.
I opened with an account of a massive disaster where people so desperate to
reach Europe risked and lost their lives. Whether these are irregular migrants or
not, they are human beings. The values of the EU are that every human being is
treated with respect and fairness, and with full respect for his or her legally
guaranteed fundamental rights. The best way forward is to continue to push for
fundamental rights to form an integral part of EU migration policy.
Thank you very much for your attention. I am looking forward to see the
outcome of your discussion here today.